R v Cobcroft (No 2)
[2022] ACTSC 15
•3 February 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cobcroft (No 2) |
Citation: | [2022] ACTSC 15 |
Hearing Date: | 2 February 2022 |
DecisionDate: | 3 February 2022 |
Before: | Murrell CJ |
Decision: | Sentenced to 21 months’ imprisonment, suspended after five months on the offender entering into a recognizance release order in the sum of $1000 to be of good behaviour for a period of two years with further conditions |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child abuse material accessed via a carriage service – use a carriage service to access child abuse material – use a carriage service to access child pornography material – where the material comprises computer-generated images, cartoon strips, anima, hentai or comics |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 17A, 19, 20 Criminal Code Act 1995 (Cth) ss 474.19, 474.22, 474.22A |
Cases Cited: | Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 R v Arnould [2020] ACTSC 345 R v Edwards [2019] QCA 15 |
Parties: | The Queen (Crown) Peter Robert Cobcroft (Offender) |
Representation: | Counsel N Purvis (Crown) B Morrisroe (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Number: | SCC 144 of 2021 |
MURRELL CJ:
Introduction
The offender is to be sentenced for the following offences.
(a)On 27 August 2020, possess child abuse material, accessed via a carriage service, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) (Criminal Code).
(b)Between 23 May 2018 and 4 September 2019, use a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code.
(c)Between 12 September 2019 and 27 August 2020, use a carriage service to access child abuse material, contrary to s 474.22(1)(a)(i) of the Criminal Code.
The maximum penalty for each offence is 15 years’ imprisonment.
On 10 June 2021 the offender pleaded guilty in the Magistrates Court. The early pleas occurred in the face of a strong Crown case. However, in the sentencing proceedings the Crown accepted that the pleas had been entered at the earliest available opportunity and had benefited both the community and witnesses.
Facts
Police learned that the offender’s IP address was being used to access digital material on a peer-to-peer file sharing network.
On 27 August 2020, police executed a search warrant at the offender’s residence. They seized a Metabox laptop, a Kingston WiDrive, a Samsung Galaxy Tablet S3 and a WD Elements 1 TB Hard Drive belonging to the offender. Analysis revealed that, on that day, the offender possessed child abuse material on each device.
During the search, the offender was cooperative and engaged in a recorded interview. He told police that he had downloaded fantasy fiction and fantasy pornographic material based on file name or thumbnail image, and then selected images in which he was interested. Child abuse material had appeared during his search for adult material, and he had downloaded files containing computer-generated depictions of children, not realising that child pornography laws extended to such material. At the time, he did not think that such material actively harmed anyone. However, he also admitted that he was interested in the corruption of the innocence of fictional children. He estimated that he may have looked at images about once a week.
The material comprises computer-generated images, cartoon strips, anima, hentai or comics. The material depicts no real human children. Under the INTERPOL 4 Tier Categorisation System, the material the subject of the charges is Category 2 material, that is material that depicts unreal children involved in a sex act or witnessing a sex act, or material that focuses or concentrates on the anal or genital region.
The child abuse material shows female and male computer-generated children, ranging in age from toddlers (about two or three years old) to early pubescent children (about 14–15 years old). The children are depicted in various sexual acts including rape of female children by adult males, bestiality and bondage. Among the children are several popular fictional characters. Some of the cartoon strips include text captions expressing the thoughts of the fictional participants.
The representative sample of images in Exhibit 2 shows images that are very realistic and highly offensive; they are not just roughly drawn cartoons. Similarly, the text accompanying some of the images is degrading, objectifying and most disrespectful of the human value of children.
Count 1—Possess Child Abuse Material
Analysis of the WD Elements 1 TB Hard Drive revealed 17,600 hash value matches (14,144 unique files) to known Category 2 child abuse material files. In addition, police found the following apparently non-duplicitous material on the offender’s other devices:
(a)943 files comprised of 884 pictures and 59 videos on the Metabox laptop;
(b)717 files comprised of 517 pictures and 200 videos on the Kingston WiDrive;
(c)337 files comprised of 337 pictures on the Samsung Galaxy Tablet S3; and
(d)1,552 files comprised of 1,313 pictures and 239 videos on the WD Elements 1 TB Hard Drive.
Count 2—Use a carriage service to access child pornography material
An analysis of the offender’s Metabox laptop, Samsung Galaxy Tablet S3 and Samsung Galaxy Mobile S7 found that between 23 May 2018 and 4 September 2019 the offender had accessed the following child abuse material:
(a)62 files on the Metabox laptop;
(b)44 files on the Samsung Galaxy S3; and
(c)41 files on the Samsung Galaxy Mobile S7.
The images on the mobile phone were thumbnails or cached images.
The relevant material is also a subject of the possession charge.
Count 3—Use a carriage service to access child abuse material
An analysis of the offender’s Metabox laptop, Samsung Galaxy Tablet S3 and Samsung Galaxy Mobile S7 showed that between 12 September 2019 and 27 August 2020, the offender had accessed the following child abuse material:
(a)451 files on the Metabox laptop;
(b)80 files on the Samsung Galaxy S3; and
(c)33 files on the Samsung Galaxy Mobile S7.
The images on the mobile phone were thumbnails or cached images.
The relevant material is also a subject of the possession charge.
Objective seriousness
Factors relevant to the objective seriousness of such offending were discussed in R v De Leeuw [2015] NSWCCA 183 and Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 at [94]. In this case, relevant matters include the following:
(a)On 27 August 2020, the offender possessed a very large volume of child abuse material, being 21,149 files (including several thousand duplicate images). Although Count 1 relates to only one date, the offender had been collecting the material for more than two years and the charges are to be considered in that context.
(b)The material does not depict real children and the creation of the material did not involve physical or psychological harm to real children. However, that is not to say that the material is harmless. Such material is degrading and disrespectful of children generally, and it tends to normalise the exploitation of children and to stimulate interest in the abuse of children.
(c)The content of the child abuse material is highly offensive.
(d)The offending was committed for the offender’s sexual gratification.
(e)The offences were not aggravated by the offender engaging in a commercial enterprise or making the material available for further distribution.
It is very relevant that the offender possessed no images of real children and appeared to be attracted to the idea of innocence corrupted, as depicted through fictional characters. His attraction to fictional characters was carried through to the adult pornography that he possessed, much of which concerned fictional, computer-generated people rather than real adults.
Subjective features
The offender was 50 years old at the time of the offences.
The offender has no prior criminal record. While relevant, prior good character may be given less weight when sentencing for offences of this type because of the need to emphasise sentencing purposes such as general deterrence.
The offender was born in Sydney and is one of two children. He moved to Canberra when he was four years old. He received a strict, religious upbringing but had generally positive relationships with members of his immediate family. There were significant difficulties associated with the strict family upbringing. For example, because of their strict religious beliefs, the offender’s parents burned his comic books and objected to him receiving sex education at school.
In high school, the offender was sexually taunted by a group of girls.
While the material before the Court does not explore the issue, I have little doubt that the offender’s repressed upbringing was a cause of the schoolyard sexual harassment, and both played a part in the offender’s dysfunctional resort to child abuse material.
The offender completed Year 12 and gained qualification in computer studies. He was then employed in the Australian Public Service for 26 years before accepting a redundancy package in 2016.
The offender had few relationships with women until, at 38 years of age, he met his wife.
The offender resides with his wife and young child
. He has a positive and highly supportive relationship with his wife.
Following his redundancy, in 2017 the offender became the primary carer for his young child, while his wife worked full-time. Since 2017, apart from a period when he was restricted by bail conditions, the offender has remained his child’s primary carer. However, he hopes to re-enter the labour market.
Following his arrest on 27 August 2020, the offender spent one night in custody and was then released to bail. For the first six months, the bail conditions prevented him from being alone with his child and continuing the role of primary carer. Thereafter, bail restrictions on his movements have limited his capacity to assist by taking his child to organised activities. The offender has struggled with the restrictions on his ability to engage with his child. Bail conditions have also significantly restricted the offender’s access to the Internet, “disconnecting” him from his friends and community, as many of his social interactions, family organisation, and hobbies had involved computer use.
Understandably, events surrounding the incident have been very disturbing to the offender’s wife. Apart from the shock of the allegations, the offender’s bail conditions meant that, for a significant period, she was not only the sole breadwinner and had to manage the family finances but was also solely responsible for the care of the couple’s child. She became very stressed and required counselling. The offender and his wife still enjoy a close relationship, although the offender realistically believes that the couple should undertake counselling to address issues associated with the present charges. He is committed to being a good husband and father.
The offender’s father passed away in 2011. The offender has a positive—albeit somewhat troubled—relationship with his mother. He had a good relationship with his brother until his brother ceased all contact about five years ago.
The offender maintains contact with friends from school and past employment. He enjoys playing games (both board games and online games, which have been restricted under bail conditions), undertaking graphic design, and caring for his child. The offender has been reasonably open with his family and friends concerning the charges and they have responded by being supportive.
The offender applied for a sex offender treatment program but was rejected on the basis that his needs would best be met by continuing treatment with his current psychologist.
The author of the pre-sentence report stated the offender had ‘overall…accepted responsibility for his actions’. The author assessed the offender’s general risk of re-offending as low, noting protective factors including lack of criminal history, stable accommodation, financial stability, supportive, pro-social relationships with family and friends and a lack of substance abuse issues. However, the author considered that the offender would benefit from further sessions with a mental health professional to address the attitudes that led to the commission of the offences and strategies to avoid recurrence.
The offender had no mental health issues prior to experiencing anxiety and depression associated with the current charges. Since 2020, he has undertaken counselling. Mr Troy, the offender’s treating clinical psychologist opined that the offender was at low risk of re-offending, stating:
He has demonstrated a healthier set of boundaries around his sexual interests and has consistently reported nil urges to access online related sexual content.
In a forensic psychological report, Professor Stevens, a clinical psychologist, diagnosed the offender as suffering from adjustment disorder with mixed anxiety and depressed mood. Professor Stevens described adjustment disorder as a mild condition and considered that, with professional assistance, following finalisation of the proceedings the offender would fully recover. Professor Stevens stated:
Mr Cobcroft is in my opinion at very low risk of reoffending and is unlikely to access child exploitation material in the future either through the Internet or any other means.
In a letter to the Court, the offender stated that, having spoken to police, Child and Youth Protective Services and psychologists, he now understands that representations of anyone under the age of 18 contribute to the market for child exploitation material. He stated that he is horrified at the idea of anyone sexually abusing children and acknowledged that he may have contributed to such harm by collecting child abuse material and thereby encouraging its creation.
A former work colleague and friend described the offender as patient, diligent and generous with his time. She said that he had voluntarily supported environmental and social causes and championed inclusiveness. He was genuinely remorseful.
A close friend described the offender as intelligent, honest, and highly principled. He was aware of the offender’s interest in fiction and media and his hobby of archiving such material. He fully accepted the offender’s account of the circumstances leading to the charges.
The offender may not have provided his friends with a detailed account of the offences. However, he has provided them with a broadly accurate account. On the basis of the offender’s letter and the evidence of his referees, I am satisfied that he is genuinely remorseful and has accepted full responsibility for his conduct.
Other sentencing considerations
The Court must impose a sentence that is of a severity appropriate in all the circumstances of the offences: s 16A(1) Crimes Act 1914 (Cth) (Crimes Act). Offences such as the present require that there be a strong message of general deterrence. Denunciation and protection of the community from harm are also important sentencing purposes.
Rehabilitation is a relevant consideration. The offender has very good prospects of rehabilitation. He has been proactive in seeking counselling, has strong support from family and friends, is remorseful, and has gained good insight into his conduct.
In sentencing the offender, the Court must take into account the matters set out in s 16A(2) of the Crimes Act that are relevant and known to the Court, in addition to other relevant factors.
The offender relied on the effect of imprisonment on his family as a relevant consideration. I accept that a custodial sentence will mean that the offender’s wife will be burdened with additional financial and caring responsibilities. Regrettably, it is often the case that a custodial sentence imposes a substantial burden on an innocent partner. The burden that will be imposed in this case does not persuade me to impose a non-custodial sentence.
From the time when he was interviewed by police, the offender admitted his misconduct. The early pleas were not merely a recognition of the strength of the Crown case. They evidence an acceptance of responsibility, remorse and a willingness to facilitate the justice process. It is appropriate to allow a sentencing discount of 25 per cent.
The Court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence: s 17A Crimes Act.
The offender’s legal representative conceded that a sentence of imprisonment was appropriate but contended that a community-based sentence of imprisonment was within range.
The Crown submitted that, having regard to the objective seriousness of the matter and the need for general deterrence, a custodial sentence was the only appropriate sentence.
In relation to conduct occurring after 23 June 2020 (i.e. Count 1), a new sentencing regime applies, which is designed to ensure that sentences sufficiently punish, deter and rehabilitate offenders. The Crown relied on the new s 20(1)(b)(ii), which inserted a presumption that a child sex offender will serve an actual term of imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognizance release order.
The defence submitted that, in this case, there were exceptional circumstances, being a combination of factors, particularly the facts that no actual children were harmed, the offender’s strong prospects of rehabilitation and the offender’s insight and remorse.
While these and other factors may comprise a relatively unique set of circumstances and certainly inform an appropriate sentence, they do not combine to constitute “exceptional circumstances” such as should displace the presumption.
The new sub-s 19(5) of the Crimes Act inserted a requirement for cumulative sentences when sentencing an offender for multiple child sex offences. However, sub-s 19(6) provides that sub-s (5) does not apply if the sentencing court is satisfied that concurrency will result in sentences of an appropriate severity. In this case, the Crown conceded that, because of the factual connection between the subject matter of Counts 1, 2 and 3, partial concurrency would result in sentences of an appropriate severity.
If the Court considers that it is appropriate to impose wholly or partially concurrent sentences, then it is required by sub-s 19(7) to state its reasons. I agree with the Crown concession; all charges concern the same course of conduct and address the same material. Partial concurrency will achieve an overall sentence of an appropriate severity.
It is relevant to consider comparative sentences throughout Australia, both in relation to relevant sentencing principles and any range of sentences that they may indicate.
The Crown provided a table of comparative sentences. The Crown and the defence agreed that the most factually comparable case was that of R v Edwards [2019] QCA 15. A police officer had pleaded guilty to an offence against s 474.19(1). Over a period of 10 weeks, on 31 separate occasions, he had used the Internet to access child pornography, being a total of 639 child abuse images. There were 33 images involving real children, and the remainder did not involve real children but were abhorrent in their content. The primary judge had imposed a sentence of 15 months’ imprisonment to be released after serving two months on condition that he be subject to probation for a period of two years. The Court of Appeal dismissed an appeal asserting that the sentence was manifestly excessive.
While I recognise that sentencing statistics are of limited assistance, I note that the Commonwealth Sentencing Database shows that, for offences against s 494.19(1)(a)(i), to February 2021, 63 per cent of offenders received a sentence of full-time imprisonment, generally in the range of one to three years.
For offences against s 474.22(1)(a)(i), statistics are limited but show that two thirds of offenders received a sentence of full-time imprisonment, and those sentences were often two to three years.
For offences against s 474.22A(1), no statistics are available. Nor was I referred to any sentencing decisions of an intermediate appellate court that concerned this relatively new provision. However, I was referred to the decisions of Elkaim J in R v Davison [2020] ACTSC 272 (Davidson), R v Arnould [2020] ACTSC 345 and R v Cusack [2021] ACTSC 75 (Cusack).
In Davison, the offender was sentenced for an offence involving 827 files of which 496 were ANVIL Category 1 (offensive but no actual sexual activity), and 280 were Category 6 (no actual child). After allowing a discount of 25 per cent, his Honour imposed a sentence of nine months’ imprisonment, suspended after three months on the offender entering into a recognizance release order for a period of 12 months.
In Cusack, the offender was sentenced under ss 474.22A(1), 474.19(1) and 474.22(1). The factual scenario was somewhat similar to that in the present case. There were 2,517 child abuse files that were common to offences. They were accessed over a period of five years. The decision does not refer to the categorisation of the child abuse files, but I infer that they involved real children. There were some similarities between the offender’s personal circumstances and that of the current offender. In each case, after applying a sentencing discount of 25 per cent, Elkaim J sentenced the offender to nine months’ imprisonment, accumulated to a total of 12 months’ imprisonment. Noting a risk of suicide in custody, his Honour directed that the period of imprisonment be suspended after two months on the offender entering into a recognizance to be of good behaviour for a period of 18 months.
Considering the maximum available penalties that may be imposed for the offences, I consider this to be a relatively lenient sentence.
Sentence
I convict the offender and impose the following sentences.
(a)Count 2: 11 months’ imprisonment (15 months’ imprisonment less approximately 25 per cent), from 2 February 2022 to 1 January 2023.
(b)Count 3: 11 months’ imprisonment (15 months’ imprisonment less approximately 25 per cent), from 2 May 2022 to 1 April 2023.
(c)Count 1: 15 months’ imprisonment (20 months’ imprisonment less 25 per cent), from 2 August 2022 to 1 November 2023.
The total sentence is 21 months’ imprisonment.
The period of imprisonment is to be suspended after five months (on 1 July 2022) on condition that the offender enter into a recognizance release order in the sum of $1000 to be of good behaviour for a period of two years from 1 July 2022. In addition, the following conditions apply to the recognizance release order:
(a) The offender is subject to the supervision of a probation officer appointed by ACT Corrections.
(b) The offender must obey all reasonable directions of the probation officer.
(c) The offender must not travel interstate or overseas without the written permission of the probation officer.
(d) The offender must undertake such treatment or rehabilitation programs as the probation officer reasonably directs.
(e) The offender must report to ACT Corrections within two working days of release.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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